COURT OF APPEALS DECISION DATED AND FILED March 2, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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State of Plaintiff-Respondent, v. Randall L.
Fisher, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Randall Fisher appeals a judgment convicting him of kidnapping, false imprisonment, first-degree sexual assault, possession of a dangerous weapon, and obstructing an officer, together with an order denying his motion for postconviction relief. Fisher argues (1) the court should have granted a mistrial because of jury contamination, and (2) he received ineffective assistance of trial counsel. We affirm.
BACKGROUND
¶2 On May 26, 2004, Fisher woke his neighbor, Bailey B., in the early morning hours by pounding on her door. When she answered, Fisher displayed a stun gun and knife, handcuffed and gagged her, and brought her back to his basement. Fisher’s wife, Sharon, found Fisher that morning naked in the basement with Bailey, who was topless and in handcuffs. Fisher had had sexual intercourse with Bailey. For the next two weeks, Fisher and Sharon held Bailey captive in a small boarded-up room in their basement and both repeatedly sexually assaulted her. On one occasion, they drove Bailey to her credit union and instructed her to close her account and give them the money. On multiple occasions during the two weeks, Fisher and Sharon told police investigating Bailey’s whereabouts that they did not know where Bailey was.
¶3 Bailey escaped on June 10 and contacted police. Both Fisher and Sharon were charged with, among other things, kidnapping, false imprisonment, and sexual assault. Fisher’s charges were tried to a jury from April 28 to May 4, 2006.
¶4 On the final day of the trial, the clerk of court, Nancy Robillard, reported an incident to the court that occurred the evening before with one of the jurors. Robillard stated that when juror Brenda Pink called her husband, he told her they had received a message on their home answering machine that said, “Brenda was good last night.” Robillard said Pink was upset and asked Robillard if Fisher could have made the call. Robillard told Pink that was not possible because Fisher is in jail and could only make collect calls. Robillard said that although there were other jurors in the room during her conversation with Pink, the two spoke in hushed tones and she thought that, at most, two or three other jurors may have heard their conversation.
¶5 Fisher moved for a mistrial, arguing other jurors may have improperly learned he was in custody and heard his name mentioned in connection with a call that visibly upset Pink. The court denied the motion, concluding the jury already had ample evidence Fisher was in custody. However, the court replaced Pink with an alternate juror and later instructed the jury that the issue of whether Fisher was in custody was irrelevant. The jury found Fisher guilty on all charges.
DISCUSSION
¶6 On appeal, Fisher again argues the court should have granted
a mistrial because of jury contamination.
When reviewing a circuit court’s decision whether to grant a mistrial, we
will reverse only if the court erroneously exercised its discretion. State v. DeLain, 2004 WI App 79, ¶25,
272
1. Mistrial
¶7 Fisher argues the circuit court should have granted a mistrial because other jurors may have learned from Robillard’s conversation with Pink that Fisher was in custody.[1] We are reluctant to address the merits of this argument because Fisher fails to identify the legal standard for determining whether possible jury contamination requires a mistrial, fails to apply the facts to the standard,[2] and fails to refute the State’s response to his argument.[3]
¶8 Nevertheless, we agree with the State’s analysis of this
issue. The State contends the legal
standard is whether there is a reasonable probability the information Robillard
shared with juror Pink prejudiced the jury.
¶9 As the State points out, it is not clear other jurors learned
anything they did not already know from the incident. First, Robillard said she and Pink spoke in
hushed tones and that she thought “most of [the other jurors] never heard
anything.” However, even had other
jurors heard Robillard tell Pink that Fisher was in custody, there was ample
testimony at the trial Fisher spent a significant amount of time in jail prior
to the trial. For example, when
¶10 Further, whether to grant a mistrial requires the court to
exercise its discretion. See DeLain, 272
2. Ineffective Assistance of
Counsel
¶11 A claim of ineffective assistance of counsel requires a
defendant to show his or her attorney’s performance was both deficient and
prejudicial. State v. Allen, 2004 WI
106, ¶26, 274
¶12 Fisher’s ineffective assistance argument essentially boils down
to a broad and meritless attack on his trial counsel’s strategy. First, Fisher argues his trial counsel failed
to properly prepare
¶13 Fisher also claims his counsel failed to adequately cross-examine
witnesses. This is equally without merit.
Fisher argues his attorney should have elicited, among other things,
testimony that the Fishers purchased the handcuffs used on Bailey as a sex toy
and the Fishers openly had sexual intercourse with individuals other than each
other.[4]
Fisher contends this testimony would
have helped the jury understand that
¶14 We decline to second-guess Fisher’s trial counsel’s decision
not to further develop testimony about the Fishers’ sexual practices. Even assuming Fisher’s theory of defense
required evidence he and Sharon had an unorthodox sexual relationship,
¶15 Fisher also argues his counsel was ineffective for failing to point
out alleged inconsistencies in the testimony of certain witnesses—such as the
teller who waited on Bailey when the Fishers forced her to close her
account—between Sharon’s and Fisher’s trials.
Fisher’s statement of facts includes a reference to the teller’s testimony
during his trial, but he nowhere tells us what exactly the teller said during
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Fisher also argues on appeal that the probability his name was associated with an upsetting phone call necessitated a mistrial. We do not address this argument because in addition to failing to identify any relevant legal standard, Fisher’s argument on this issue is essentially rhetorical hyperbole not supported by the record. For example, he characterizes the message left on Pink’s machine as “diabolical” and “tremendously threatening,” and asserts that after such a call “no juror can … walk into the courtroom the next morning and be completely confident in their own safety.” Fisher points to no evidence any jurors besides Pink were upset, much less affected, by the incident.
[2] Fisher simply states that jury tampering is presumptively prejudicial. There is no evidence here of jury tampering. The issue, as Fisher’s trial counsel argued, is one of jury contamination.
[3]
Fisher’s only acknowledgement of the State’s response misrepresents what he
argued in his own opening brief and asserts an argument he is not permitted to
make on appeal. In his reply, Fisher
contends the State does not respond to his argument that “other jurors should
have been questioned regarding what they overheard ….” Fisher did not argue that in his opening
brief—he argued that “further inquiry of the dialogue should have been made [of
Pink and Robillard’s conversation].”
Either way, Fisher is raising issues not raised in the trial court. His trial counsel never argued either that
others should be questioned or that the questioning of Pink and Robillard was
inadequate. In fact, the record
indicates both parties were permitted to question Pink and Robillard to their
satisfaction. “Issues that are not
preserved at the circuit court … generally will not be considered on
appeal.” State v. Huebner, 2000 WI
59, ¶10, 235
[4] Fisher also argues his attorney should have elicited testimony that the Fishers regularly sheltered troubled individuals in their home and that they had “an unusual animosity toward law enforcement.” Both arguments are without merit. First, Fisher’s counsel testified that although he interviewed both Fisher and Sharon at length before the trial, neither told him they had previously sheltered troubled individuals. Even if there were merit to developing an argument about the Fishers’ past relationships with troubled individuals—and we are not convinced there is—Fisher’s counsel cannot be faulted for not eliciting information he had no reason to know. Second, Fisher does not explain how proof he disliked law enforcement would have helped his defense.
[5]
Fisher also argues his trial counsel was ineffective for failing to call
another witness who would have testified to substantially the same things he
contends his counsel should have questioned
[6]
The State points out that portions of Fisher’s argument on this issue also
raise issues not raised at the circuit court and therefore should not be
considered on appeal. See Huebner, 235